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Must a civil society be a censored society?

By Paul McMasters
First Amendment ombudsman

(Editor's Note: This article appeared in the most recent edition of Human Rights, published by the American Bar Association, Fall 1999, Vol. 26, No. 4.)

More than one year has passed, and we have yet to shake the image of Matthew Shepard pistol-whipped and strung up to die on a Wyoming rail fence because he was gay. We still shudder over the horror of James Byrd chained to a pickup truck and dragged to his death along a Texas country road because he was black. We cringe when reminded of the racist rampage of Benjamin Smith that left two people dead and nine others wounded.

America, we like to feel, has room for everyone. It is a place of tolerance, equality, and justice. Hate is a singular affront to that vision, and the lengthening list of these atrocities haunts the national conscience and quickens the search for remedy.

It once seemed easier to ignore the haters among us. They held furtive meetings in out-of-the-way places, wrote racist screeds in the guise of bad novels, and when they appeared in public, they wore hoods to hide their faces. Now, they apply for admission to the bar, stand for elected office, appear on radio and television talk shows, and increasingly take their message to the mainstream by using the Internet.

Hate has been a presence on the Internet since its inception. That presence increased dramatically with the advent of the World Wide Web. Now such sites, professionally produced and graphically appealing, number in the hundreds. More go up every day. Activists have moved quickly to confront the haters on this virtual ground, using the Internet to give the lie to hate speech, to monitor hate groups, and to highlight the problems of hate.

Thus, the Internet is forcing us to plumb the true depth of hate in our society. Because the role the Internet will play in the matter of hate is still evolving, the question arises: Will the Internet prove to be an instrument of hate, a palliative to hate, or just a shift in venue? The answer will depend in large measure on the nature of the solutions to hate that we pursue.

Hate speech
Among the proposals advanced are restrictions on hate speech. Generally, hate speech is that which offends, threatens, or insults groups based on race, color, religion, national origin, gender, sexual orientation, disability, or a number of other traits. Proposals to restrict such speech have considerable support among victim groups, civil rights activists, scholars, political figures, and ordinary citizens. The arguments for restrictions on hate speech, whether on the Internet or elsewhere, are straightforward:
  • Words can and do harm the targets of hate in painfully real ways.
  • Hate speech silences the members of victim groups and denies them their rightful standing in society.
  • There already are exceptions to First Amendment protections for other types of speech; surely hate speech can be added to that list.
  • When it comes to hate speech, civil rights must trump civil liberties.
  • The calls for restrictions include declaring hate-mongers mentally ill, government monitoring of groups and individuals espousing hate, outright censorship of hate speech on the Internet, and punishment of hate speech in all forms and media. It has even been proposed that recent hate outrages justify lifting the restraints placed on the Hoover-era Federal Bureau of Investigation to allow the agency to investigate groups and individuals for religious or political speech it deems extreme.

    Most Americans want to do something about the hate. In the aftermath of the October 1998 beating death of Matthew Shepard, the University of Wyoming student targeted because he was gay, 26 states took up legislative proposals dealing with hate crimes. Missouri passed such a law, and California Governor Gray Davis recently signed a bill that outlaws harassment of gays in state schools.

    The debate
    It is a uniquely American characteristic that such matters become the stuff of passionate debate rather than bloody warfare — remarkable considering the seriousness and divisiveness of the issues raised. When laws target speech, whether on the Internet or in other venues, profound questions are raised. Do group sensibilities take precedence over individual conscience? Is some speech so odious and hurtful that it can be regarded as conduct? Must the achievement of a civil society be at the expense of a free society?

    However we eventually resolve such questions, the debate must play out in terms of what the Constitution will allow. The Supreme Court has been wary of a general proscription of hate speech. Beginning with Cantwell v. Connecticut 310 U.S. 296 (1940), the court set about defining and refining the conditions under which hate speech might fall outside the First Amendment's protections.

    A series of these decisions — Chaplinsky v. New Hampshire 315 U.S. 568 (1942), Terminiello v. Chicago 337 U.S. 1 (1949), Feiner v. New York 340 U.S. 315 (1951), and Brandenburg v. Ohio 395 U.S. 444 (1969) — have added such terms as "clear and present danger," "fighting words," incitement to "... imminent lawless action," and "the heckler's veto" to the legal lexicon. Even so, no ruling has yet yielded up a "victim's veto."

    With the unanimous decision in R.A.V. v. St. Paul 505 U.S. 377 (1992), which held that a bias-motivated criminal ordinance was invalid because it prohibited "otherwise permitted speech solely on the basis of the subjects the speech addresses," that seems even less likely today.

    In addition, there are other constitutional obstacles such as the jurisprudence involving prior restraint, group libel, and the right to private conscience (an issue explored at some length by Alan Charles Kors and Harvey A. Silverglate in The Shadow University: The Betrayal of Liberty on America's Campuses). Nevertheless, judges and juries in state courts are listening intently to efforts to make the case against hate speech. Attempts to expand the concepts of threat or the intentional infliction of emotional distress offer hope to advocates that a constitutionally valid approach can be devised.

    Even if laws that the Supreme Court would abide could be crafted, however, there is another, more difficult, problem for the advocates of such laws: They don't stop hate. That is the fundamental flaw in solutions that focus on hate-speech laws. The proponents of such laws frequently fail to disentangle three distinct issues: hate speech, hate crimes, and the silencing of victim groups. Hate causes each of these. It does not necessarily follow that hate speech causes either hate crimes or the silencing of victim groups or that anti-hate speech laws will relieve either problem. Censoring hate speech may have emotional and symbolic appeal but little if any utility as a solution.

    Outside the United States, hate often manifests itself in prolonged and violent clashes between groups. International conventions and anti-hate speech laws don't seem to have had an appreciable impact on hate or the violence that it causes, however. We have had the same experience with campus speech codes in the United States. Not only have they not found much favor with the courts, but more important, hate speech and crimes on the nation's campuses have increased appreciably despite the existence of speech codes covering broad categories of speech at hundreds of colleges and universities.

    In fact, women and minorities — traditional groups for whom the speech codes were enacted — often are the ones punished under them. It is instructive to note that the defendants in the early hate-speech cases were religious or political speakers. In Cantwell and Chaplinsky, they were Jehovah's Witnesses; in Terminiello, a Catholic priest (albeit under suspension from his bishop at the time for racist speech), and in Feiner, a college student appealing to blacks to revolt against racist oppression.

    Defining hate speech
    The difficulty of defining hate speech significantly complicates attempts to draft laws against hate speech. What might work for scholarly or general discourse surely would not be adequate for the formulation of laws. Is the definition in terms of what the speech reflects, such as bigotry, bias, prejudice, anger, ignorance, and fear? Or what the speech conveys: intimidation, vilification, subjugation, eradication? Does it matter whether the speech occurs in a face-to-face encounter, in an online diatribe, in a novel, in a newscast, during a classroom presentation, or as part of a political candidate's campaign? Can hate speech be defined as a list of words, or does the context of those words count? Which is more important in determining hate speech, the intent of the speaker or the reaction of the audience?

    Once a definition of hate speech is codified in law, the problem becomes one of determining how it is applied and to whom it is applied. Should a law proscribe certain words and thoughts for one group of Americans but allow them for oppressed groups that have appropriated the language of victimization and discrimination as a strategy for combating hate?

    For hate laws to function, hate groups must be designated for special punishment of their words and views and victim groups must be designated for special consideration — a seductive prospect in light of their history of oppression. Ultimately, however, it is an inconsistent and possibly disastrous principle to embed in law, given the potential for arbitrary justice as well as a hardening of the hate lines. Further, to punish hatemongers for thoughts and words instead of actions is to alter the essential nature of our social and political compact.

    The problem with hate-speech laws
    Hate-speech laws encourage appropriation of victim groups' identities by groups that until recently had not been considered oppressed. The list of such "outsider" groups is growing. For example, an Oregon law includes along with the traditional criteria such designations as political party, purchasing power, union membership, social standing, or marital status, to name a few. As this list of victim groups expands, the universe of protected speech shrinks.

    Hate-speech laws can work to silence individual members of victim groups if the speech against others falls within the definition of hate speech or if individuals within the group are only allowed to represent that group in their speech. They would be prevented from criticizing or harshly characterizing members of their own group or other victim groups.

    Hate-speech laws also must depend on an accurate representation of how speech works, reasonably predicting how speech will be received. If not, application of the law becomes arbitrary and capricious. For example, if inadvertent harm is a criterion of the law — and how can it not be? — then speech against hate as well as hate speech itself becomes vulnerable to punishment since inadvertent harm is inevitable. The ironic beauty of speech is that neither the speaker nor the text can control the reaction of the audience, which may vary dramatically from one hearer to another. It is safe to say that the interpretations of a particular word or string of words in a particular context amount to some multiple of the total number of individuals and groups receiving it. Language is simply too mercurial for the constraints of legal definitions.

    Laws against hate speech would obviate the benefits of such speech — and there are benefits. Hate speech uncovers the haters. It exposes the ignorance, fear, and incoherence in their views. It warns, prepares, and galvanizes the targets. It provides the police with suspects and the prosecutors with evidence in the event of a crime. It enlivens the bystanders. It demands response. And it demonstrates the strength of our commitment to the tolerance of intolerance and the primacy of freedom of expression.

    Laws restricting hate speech begin with the assumption that speech is a finite commodity so that speech must be taken from one group in order to give more speech to another group. Such an assumption offends both reason and our First Amendment tradition.

    Punishing speech is not the same thing as curing hate. Ultimately, anti-hate speech laws would silence the voices they would help as well as those who would help them. They would be enacted with the best of intentions and executed with the worst of results. Rather than encouraging the assimilation of the words and work of those championing a more civil society, these laws would substitute one form of silencing for another. They would divert public dialogue from a focus on a fair society to a preoccupation with censorship. They would risk exacerbating hate rather than eliminating it. They would trivialize the debate by flailing at words and symbols rather than the causes of hate and discrimination. They would lay a veneer of civility over a community seething with tension.

    Even though arguments against hate-speech laws from a First Amendment perspective seem anemic and abstract in the face of hate's graphic ugliness, they must be made. Free-speech advocates cannot merely wave the First Amendment flag and walk away. They must encourage advocates for the targets of hate to speak out against bigotry and bias at every turn. They must remind them that protecting and exercising the freedom guaranteed under the First Amendment is the best way to insure the equality guaranteed under the Fourteenth Amendment.

    All efforts must focus on affirming the American tradition that no problem — even hate — is so intractable that we must censor words, images, and ideas to address it. The challenge within that tradition is to achieve civility in discourse without imposing conformity in thought. The First Amendment imperative within that tradition is to defend bad words for good principles.

    Paul McMasters may be contacted at

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